State ex rel Devine v. $30

August 18, 2000

THE PEOPLE EX REL. RICHARD A. DEVINE, STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS, PLAINTIFF-APPELLEE,V.$30,700.00 UNITED STATES CURRENCY, $20,811.00 UNITED STATES CURRENCY, DEFENDANTS,ANDRASHAWN CARTER AND IDA CARTER, PETITIONERS-APPELLANTS.

Petitioners, Rashawn Carter and Ida Carter, appeal from an order of the circuit court of Cook County, entering the forfeiture of two sums of United States currency, for a total sum of $51,511. On appeal, petitioners contend that the forfeiture order was void for lack of notice. For the following reasons, we reverse the judgment of the trial court.

BACKGROUND

The following facts are relevant to this appeal. On August 4, 1998, the State filed a consolidated complaint for forfeiture pertaining to $30,7000 seized from Rashawn Carter, and $20,811.00, seized from a safety deposit box at Drexel National Bank registered to Ida Carter, Rashawn's grandmother, pursuant to section 505 of the Controlled Substances Act. 720 ILCS 570/505 (West 1998) (The Act).

The complaint alleges that on May 23, 1998, Chicago police officers received information in the form of a tip from a citizen that a man with a gun entered Drexel National Bank, 3401 South King Drive. Police officers entered the Bank and observed Rashawn holding a white cylinder shaped object under his arm. The police performed a "protective pat down" of Rashawn and found several bundles of currency on Rashawn's person in an amount totaling $30,700. The police subsequently determined the cylindrical object to be a white sock filled with bundles of currency. The complaint alleges that Rashawn gave conflicting answers to police inquiries regarding the exact amount and source of the currency. Rashawn told police that he did not have an account at the bank, and that he was planning to rent a safe deposit box.

The complaint further alleges that once the officers "relocated" their investigation to the 21st District Police Station, Rashawn admitted that he was a member of the Gangster Disciples street gang, that the money did not belong to him, and that he had "messed up" while attempting to deposit the money in the bank. Rashawn informed police officers that he had a prior arrest for cannabis. *fn1 The police performed what the complaint describes as a "money lineup" of the currency, a procedure whereby the currency is "hidden" and "discovered" by narcotics-sniffing police dogs. A police dog, "Bo," discovered the currency and gave a positive indication for the odor of narcotics.

The complaint further alleges that police discovered three separate safety deposit box keys on Rashawn's person. Rashawn eventually told police that one key belonged to a safe deposit box "in two separate banks in Peoria Illinois." Police ascertained that one of the other keys was for safe deposit box #2037 at Drexel National Bank, and to which Rashawn had "access." Police obtained a search warrant for the safe deposit box, and on May 26, 1998, performed a search of the box recovering currency totaling $20,811. Police also subjected the currency recovered therefrom to a "sniff test" at the police station by another narcotics-sniffing dog, "Thunder." The currency also indicated positive for the odor of narcotics. The State's complaint sought that all of the currency seized be declared contraband and forfeited, as violative of the Act.

On the day the State filed its complaint, August 4, 1998, the State mailed notice of the pending forfeiture proceedings and a copy of the complaint via certified mail with return receipt requested to Rashawn Carter at 4844 S. State Street, #1410, Chicago, Illinois. The notice was accompanied by the affidavit of Assistant State's Attorney Lewis Hu, who averred that notice of the forfeiture proceedings was sent by certified mail, with return receipt requested, to parties identified as having an interest in the money, and that no claim to the money was filed.

The record reveals that the State also sent a notice of forfeiture to Ida Carter by certified mail on September 2, 1998 at 4844 S. State Street, #1410, Chicago. Ida's name, however, appears nowhere on the face of the State's complaint. Notices of the forfeiture proceedings appeared in the Chicago Daily Law Bulletin in editions published on August 7, August 14, and August 21, 1998.

Neither Rashawn nor Ida responded to the notices of forfeiture. On October 13, 1998, following a hearing, the trial court entered a default order forfeiting both Rashawn and Ida Carter's interest in the two sums of currency.

On January 13, 1999, Rashawn and Ida filed a joint motion to vacate the order of forfeiture, alleging that they never received notice of the forfeiture proceedings, and each attaching affidavits. Rashawn averred that he was incarcerated in the Vandalia Correction Center from July 7, 1998, to November 10, 1998, and only learned of the forfeiture in November 1998, upon his return home.

Ida averred that she was the owner of safe deposit box #2037 at Drexel National Bank, and that she received no notice of forfeiture of the contents of her box at her residence within the Robert Taylor housing project.

In response, the State argued that petitioners failed to make the requisite showing of due diligence and meritorious defense as required under section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 1998). The State further argued that written notice is effective when mailed, not when received, and therefore the State satisfied the statutory notice requirements of 725 ILCS 150/4(A)(1) and (B). On March 29, 1999, The trial court denied petitioners' motion to vacate the forfeiture order. This timely appeal followed. OPINION

On appeal, petitioners Rashawn and Ida each contend that the trial court lacked jurisdiction to enter the order of forfeiture, as neither received notice of the proceedings. Petitioners argue that the order is therefore void and unenforceable. We note that the State combined two distinct forfeiture proceedings for the purposes of its ...

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